The New Family Statute

Speaker A: Hello and welcome to the Minnesota Family Law Podcast, the podcast by, with, for and about Minnesota family law professionals. My name is Tom Tuft and I'm a family law attorney and ADR provider with the law firm of Tuft, Lock, Jerabik and o'. Connell. Welcome back to the return of the Minnesota Family Law Podcast. We took a brief two year hiatus, uh, as we came out of the pandemic. And with all of the happenings in the world of family law, it seemed time to restart it. We've had changes in the judiciary, especially with a new justice, Chief justice of the Minnesota Supreme Court. Uh, we've had significant changes to case law. We've had significant changes in how we approach family law cases, and we have most recently had significant changes to the family law statute. All of this led to a desire to get back into it and share what's going on and talk to the people who are most involved. Uh, speaking of which, uh, tonight's guest was one of the many driving forces, uh, and the primary driving force from the perspective of the bar, along with a few others, certainly, um, who helped get this new legislation passed. Uh, Samantha Gemberling will be the guest and she'll, uh, join me for the next hour talking about the statute, how it evolved, where it came from, who got it going and what it took to get it finally across the finish line. She'll talk about the things she likes about it and some of the things that could have been better and, and um, talk about all of the, uh, significant effort by many, many players in getting it passed. So I think Sam is someone we owe a great debt of gratitude who's devoted significant time, uh, at the expense of probably her family a bit and her practice. But, uh, she has something to be proud of with this new legislation. It covers a variety of issues, but most prominently for my practice, I know, is the spousal maintenance provision, uh, but there's also some changes to the parenting provision, significant clarifications and reorganization of the post nup and prenuptial, uh, provisions, and then an area in which I really do not dabble, assisted reproductive technology. And she'll talk a little bit about each part of the statute and, uh, what's next for the legislature. Hello, Sam. I want to thank you for being willing to participate in the podcast. Uh, and it's been a while, but there's been a lot happening in your life with, uh, the legislation. Just, um, want to talk to you a little bit about that and uh, see if, see if you can shed some light on what's been happening and why and how things all came together. But, um, great. Can you give us a little history about the legislation? You know, how long it's been coming and what's been going on?

Speaker B: Yeah. So this year we passed some pretty significant family law legislation. And the bill had four different parts. And each of the four parts, we're only going to talk about three of the parts hopefully today if we can get through it. Um, but each of the parts have a little bit of different, different history. So I think I'll start with the parenting time pieces. Those pieces were things that were follow up from the work of the Custody Dialogue Group, which was a group that reworked the, um, best interest factors in 51817. And that was a really comprehensive group that did a lot of work. But there were some nuanced things and additional things that people wanted. As people might be aware that are listening to the podcast, Minnesota has been, um, a state where a 50, 50 equal parenting time presumption has been advanced a number of times. And the start of our work was to try and work through some compromises, attempts to, uh, you know, get us to a 50, 50 presumption. And so we started working with, with two parenting organizations. And it became pretty apparent after a couple of years of work that one of those groups was really invested enough in 50, 50 that we were not going to be able to make real substantial progress. And so we worked just exclusively with the National Parents Organization and their membership. And they really did some good compromises to come up along with, um, the Minnesota State Bar association and uh, the Academy of Matrimonial Lawyers. Our three groups worked together with other shareholder groups, including Legal Aid and Violence Free Minnesota, to get to the parenting time provisions that you see in that first article of the statute.

Speaker A: So let's walk through the first, uh, article a little bit. Um, I know the first thing that stuck out at me. I know we have temporary relief hearings. Now it appears we have something called an expedited hearing, which seems to be a temporary relief hearing with some added time pressure. Where did that come from? Or what's that all about?

Speaker B: So keeping in mind the framework that a lot of the goals started out with, wanting to make sure that both parents have equal access to the court system and to children. Some of these things that made their way into this statute, including the temporary hearing provisions, were born out of a desire of parents and predominantly fathers groups to be able to have access to the court systems in those circumstances where if they had, for example, been having a Pretty robust relationship with their child. But that was interrupted for whatever reason. And because in Minnesota the mom has um, custody, right by operation of law, there could be some lags in the ability of that dad to get into court. So the goal was to get, um, to address two issues. So one of the things we wanted to address was getting those dads in particular access when they had had regular parenting time and that had been interrupted. So I think that sort of stepping off point led to a larger consideration of what requires an emergency hearing, what can kind of make its way through the regular temporary process, and what may need sort of this interim relief. And the two categories that we focused on was that parenting time issue when parenting time was being withheld, and financial relief in cases where there was kind of a freeze out situation or a withholding of financial support. And it was our discussion and decision in our work with these different shareholder groups that those were the two areas where we wanted to focus on, on getting quicker access to the court system. So not having to take the time to schedule a temporary hearing, which can sometimes be fairly significant amount of time out. It could be six or eight weeks. So you've got those six or eight weeks plus the hearing, the briefing and pleading, plus the 90 days, you can be six and a half, seven, eight months, which in the life of a young child can be really impactful. And in the life of someone needing financial support, that can lead people to kind of make long term financial decisions and settlement that may be ill advised because they feel forced into that. So we wanted to address those two things in that type of middle level relief. And uh, it's our hope obviously that this is not going to create an entire rash of people saying I must get into court immediately and everything's an emergency. Uh, I think we kind of had a pendulum there and we want to try and set that in the middle to the extent that we're able. So we want to give the court enough room to address these things, but not so much that it becomes everything's an emergency.

Speaker A: So did the court have any involvement or pushback on any of this? It's a new expectation there. Um, of the 30 day, from everyone

Speaker B: that has reviewed it, we have not seen, uh, anyone, no shareholder from the judiciary stepped in and said, hey, this is going to be unworkable for us. Obviously all statutes, you know, look at, there's a fiscal review on that and there was no significant fiscal impact. So I think it's going to be one of those things that we'll see how it works. Out in practice. But that was the goal, you know.

Speaker A: And then it just occurred to me the other, you know, we have this early case management structure we operate from that kind of kicks you out, uh, to go do the E and Es. And then, um, you know, sometimes there's this creates a leg, um, a forced leg. When, you know, we do have these cases that are in this window. I mean, it's gonna be interesting to see how it plays out. But I kind of like that. It gives us a, hey, you need to get us in within 30 days. And, um, it may help. Yeah, I think it takes a little bit of that problem away or that worry away from some of my cases.

Speaker B: Well, it's not every case either too. Right. It's the only cases that fit into these two criteria. So it's not going to be, uh, a mechanism to end around the E or mediation or alternative dispute resolution processes. It's just going to be a way to address these specific problems, which will hopefully feed to better settlements and more informed decision making from people. Rather than people just saying, I'll agree to whatever. I don't have any parenting time, Let me just take what I can get, or I don't have any money coming in, let me just take whatever money, uh, you know, the person's willing to offer me right now. It was really designed to kind of address those kind of situations that are urgent but not emergent. So that's the hope.

Speaker A: Yeah, I like that. Very often we're sitting in an E and E, financial or social, and someone's not being treated properly by the other spouse and, uh, or partners. So, um, there's an attorney's fees provision in there. Am I reading that right? That's part of the puzzle too.

Speaker B: It is. And this is again, you know, there's so many things that we think, oh, there's, you know, the statute covers that, doesn't it? And then you look at it and actually the statute didn't cover this particular timeframe, which is you've got an order that someone is not following.

Speaker A: Mhm.

Speaker B: All the time that you need to. So if you've got a judgment decree, for example, and someone's not complying with something that you want to enforce, whether it's a contempt issue or whether it's just a settlement enforcement issue. If you've got, for example, a mediation provision that you can't go into the court to address something until it's been mediated, or you have other provisions and, you know, someone comes to me, they hire me or you, and we're sending the letter, we're saying, hey, the judgment decree requires you to do this. You know, we need you to do this, this and this. And then we have to follow up or we have to schedule mediation or we have to do all those things. And we don't immediately file a motion. Right. Because we're trying to preserve client resources. And you know, if it's not a, uh, something that requires a retroactive, you know, addressing retroactivity, we're just kind of doing our job. And then when we come to file that motion, all of the time and attorney's fees that went into attempting to garner compliance with the order, those are not covered by the statute. It's only from the point of the filing of the motion to the conclusion. So it's just a little, um, there's a little loophole there that can be pretty impactful and doesn't, you know, people are not encouraged to comply with orders because they're like, uh, there's really no sanction for me not complying anyway because, you know, you've spent upfront attorney's fees that you're not going to get back. So I think there was a case too. And I'm terrible at remembering the names of cases, so I will not even act like, um, I'm not. But there was a case specifically that held that those attorneys fees, you can't be compensated for an attorney's fees award. And so we wanted to just close that little gap since we had the opportunity to do this work in the statute.

Speaker A: So I want to move on to. There's another section under the remedy section which was really interesting. Talked about, you know, having to follow orders of. And they called it parenting time consultant, which is a thing. I mean, is it a thing we've, I think, avoided. We try to have parent time expediter and parenting consultant and. But then there's the catch. All to cover those. But it's interesting, the notice that has to be in things. I guess I was going to ask you, is that notice going to be added to Appendix A? Do you know, or.

Speaker B: Yeah, it should. Yeah, that should be what happened. That's what the intent of was the statute to require that additional broadened notice, um, in Appendix A. But.

Speaker A: But the.

Speaker B: That whole issue about remedies is one of those things. Again, when you do this every day for many, many years, you may have done it a few, many more than I have. But when we've done it for this number of years, you think, well, there's remedies for this. Right. And then you look at those remedies, what are the actual remedies for withholding parenting time? And they're things like payment of a civil sanction to a civil fund. And we were sitting around working on this language and thinking, has anyone ever actually had that sanction imposed and where does that money go and who collects that money? Just practical things like, and how does that being the sanction actually impact this particular case? Right. So there was a number of things. It was the remedy section and how some of those remedies don't actually play out in reality. And then there was really wanting to impact withholding a parenting time, you know, making it, uh, uh, treated in a serious manner the way that it should be. So I think it was kind of a twofold issue to get very clear on the remedies. And then as you pointed out, we have, and other states have, which gets us into the parenting coordinator and other potential language. The reason why we wanted to have all of that language in there is if you have an order that's transferring in from another state. Oh, sure, we want to catch up, you know, catch all of the people who could possibly be making a parenting time order so that people, judges looking at these orders understand this is an enforceable order as well. A parenting consultant order is enforceable, a PTE order is enforceable, and you can sanction a party for non compliance with those types of orders as well. And as you know, we've had so many more parenting time expediter and parenting consultant cases, predominantly managing the issue of parenting time, that it's really important that there be remedy and sanction if people aren't appropriately following that. One criticism I heard of the statute in a legislative hearing was that the drafting implies that two parents can't just make an agreement that it has to be in writing. Or you could, you know, some, some of this criticism is sensational, right, that you'll lose all your parenting time or go to jail if you don't. If you change your weekend and you don't put it in writing. And I, you know, I think that's a, that's a broad reading that I don't think is accurate at all. I think if you email, you are, uh, family wizard. You text, you guys change your weekend. There's no, as we always tell clients, there's no parenting time police coming to check on who's got Easter. Right. But it is, you know, in all seriousness, we want to address those withholding cases or cases where kids are not getting to their other parent. Um, and I also Just want to point out that a number of our stakeholder groups, including Legal Aid and Violence Free Minnesota, wanted to be sure that there was language there that accounted for a victim of domestic abuse. Right. Or, um, someone who is protecting a child from a threat of abuse or neglect. And so there's some catch all language in a couple sections there to address that. You know, obviously, if there's a credible reason to be withholding parenting time, a credible safety reason, you know, addressing the child's needs, obviously we want the court to be able to tend to that. And so that's why there's language there for that as well.

Speaker A: One thing in there is if, um, a parent is withholding the child for 14 days, um, that seemed to be a cutoff and that, you know, that perfectly reasonable approach. Was there something behind that or what was that duration?

Speaker B: No, there were, there were so many considerations on the numbers, you know, and should it be 14 consecutive days? Because if you are just kind of bridging your own parenting days, sure. That could end up being. If you took 14, but it's only your days that could end up being a whole month. And so there, there's always. You know, I think one of the things I have really learned in this legislative process as a whole, um, is that every single nuanced word matters, and every single word was discussed and thought through. And you're never gonna. Everything is not gonna be right. Like, it's not gonna please everybody. No matter how you do it, there's gonna be a place where you change something or cut something or modify something that's gonna negatively impact this family, but benefit all these families. And so it's just sort of reaching that point of improves, you know, the operation of the statute for families overall. And that's kind of the goal.

Speaker A: Yeah. Well, let's move on to, um, Article two, which, um, my law partner described it as the biggest change in family law, um, in his 30, in 30 years, as far as he could see. And Dan O', Connell, which, you know, he's been practicing, he's been involved in bar committees and ethics committees and things like that. And it just, it struck him, um, in a positive way, obviously, but, um, that this was a big deal and especially the maintenance, um, provision.

Speaker B: So the history on the maintenance piece is a little different. Um, the maintenance kind of reform movement really kicked up in Minnesota in 2016 and 2017. There was a group called the Alimony Reform Committee, I think, um, and they reached out to a couple different representatives and senators to try and eliminate permanent spousal maintenance like that it exists at all as a concept. And so from that, um, the Academy got involved and the, um, Minnesota State Bar association and I have worked on this piece of legislation as it looks today, since 2016. Um, we started out with a shareholder group that was the Bar association, the Academy Matrimonial Lawyers, Minnesota Chapter, a couple other people, um, and then a couple different representatives and senators and that we worked for a little while that group. And then we decided that the statute itself needed a pretty big overhaul. Uh, and we thought the most efficient way to do that was to. For the Academy of Matrimonial Lawyers, the Minnesota Chapter, to take that task, that drafting task on. And so we did that. The Academy of Matrimonial Lawyers did the drafting work as it looks today. Um, we had a subcommittee. There was six members of that subcommittee who worked their tails off. And you know that any, any academy member is, you know, a, uh, pretty qualified and skilled provider. Many, many hundreds of years of experience, you know, added up together in that room and tremendously varying opinions. And we actually use Kevin McGrath to be our moderator and mediator so that we could get to um, kind of a, the product that we were able to put together. And I'm really proud of it. I'm really proud of all the other academy members who worked on it with me. And Kevin had, um, a lion tamers job of a lot of competing personalities and competing interests. And I think the really important thing about how this came about is that there was really diverse viewpoints. And you know, obviously there was people coming at it from the viewpoint of the Obligee and other people coming at it from the viewpoint of the Obligor or, you know, from families as a whole, from the social issues. Right. We have changed dramatically from where we were 30 years ago as far as economics. Right. Uh, people's role in the workforce and all of that we wanted to address. And so we took the statute, started from the statute that we had, and you'll see in looking at it, we did retain a good number of what we had, a good percentage of that because it really worked and it's not broken, so why fix it? The Academy kind of worked through that and then took that draft in 2019, 2020, back to that original group of shareholders, and then also worked with Legal Aid, um, worked, you know, with other shareholder groups to kind of vet out and get to the maintenance statute that we actually were able to move forward on. The maintenance statute was also a real timing issue we had to have, you know, because of the risk, um, of kind of the 5050 presumption movement hanging on any kind of family law legislation. We were just not able to move forward a lot of meaningful legislation, including, um, spousal maintenance and the prenuptial and anti nuptial provisions until we kind of had space to really focus on how important those economic issues are. So that's kind of how we got to the statute and where it is. And I think, um, I'm happy to talk about the specifics of it as well.

Speaker A: So, um, you know, when I'm reading these, the statutes, like I have several current cases that are impacted by it, and I'm thinking, how does this help or hurt my client? Um, you know, and you can find places on both sides of this, I mean, which maybe makes it really the reason. It's kind of thoughtful and nicely put together. Um, I'm just curious. So the indefinite and the transitional are the new. The new words.

Speaker B: Right.

Speaker A: Uh, just curious how those came from someplace or those are creation of the committee or how to do that.

Speaker B: So it's a little bit of both. I mean, you know, we really. One of the. We had two really major goals kind of going into this rework of the statute. And one of. One of them was like I talked about, to get it current, you know, to come into this where we are today economically and where we are with people's roles in the workforce. And the other was just to set out some clarity so people could have really fair expectations of what they could expect. And that's where you get into the language. Right. I don't know about you, but if my kid writes on the wall with a permanent marker.

Speaker A: Yeah.

Speaker B: I'm pretty nervous about whether that's going to come out.

Speaker A: Yeah.

Speaker B: Right. Permanent to clients says permanent, says never going to end, says you can rely on it, says you're going to be paying this until the end of time. And I think that expectation of that word really did not, you know, especially for. For permanent maintenance. That's modifiable. It's just. It's not permanent. Right. So then you're telling people it's permanent, but it's really not permanent because you could. It's just. It just doesn't make any sense to a regular old person sitting across the table from you trying to understand. Right. And so that's where, you know, I have had the. I'm not going to call it a pleasure, but the experience of reviewing 50 states worth of maintenance statutes and there's all kinds of potential language, but I think the word that we landed on as a committee was indefinite because it may, you know, it's going to go as long as it's going to go. Uh, and so that word is, is the word that we decided best really would make sense to someone who is a payer or a recipient of indefinite maintenance, which is, you know, what permanent maintenance has become under the statute. The same is true for temporary maintenance. Um, temporary maintenance now will have its own specific meaning, which is maintenance paid in the temporary period or under a temporary order. Right. Um, and there's many, many potential words that could have meant the same thing. But the reason we landed on transitional maintenance was to kind of underscore what that money is for. And it's. It is a transition. Right. You're coming from one point in your life to a different point, or you're helping someone move from one point to another point. And so again, it was really designed to be consumer accessible. You know, people are understanding what it is that they're going to receive. And so that was the goal of the language is to try and just make it clear to people. There's. I cannot tell you, there's probably at least two hours of meetings related to just the words.

Speaker A: So don't doubt it. Um, and I remember many times given the speech to a client or in a mediation, yeah, temporary may not be temporary, and permanent is probably not permanent.

Speaker B: Right.

Speaker A: You know, and it's just. And then, yeah, and then the confusion over the two temporaries. Um, I mean, I do like the clarity this gives that we definitely didn't have before. Um, and there's more guidance. One thing that actually cause this affects several of my cases, it says, um, the language through appropriate employment is struck out. And I'm trying to figure out what that means, what that will do. Um, the fact that it was struck out may send a message, um, what's behind that provision?

Speaker B: So I think the striking of it was actually to shift the focus away from the words appropriate employment, because what is appropriate employment? Right. If part of what we're trying to do is to make this, you know, more consumer friendly, more client friendly, a big way that you do that is you reduce the things that you can litigate about. And so if you shift the focus from what is appropriate employment to that broader consideration of all relevant circumstances. And that's what we wanted to do is just say, you got to focus on all relevant circumstances that will include appropriate employment, that'll include assets you have that may generate revenue for you. It'll include whether the job that you have is Is that something that you can grow into, something that's going to be better able to meet your needs? It was not to exclude the fact that you need to be appropriately employed. It was to cut out the disputes related to, you know, is this job appropriate? Is that job appropriate? Um, you know, I, I don't at all anticipate there won't still be things like vocational assessments and things like that, but you have to consider those things under all relevant circumstances under how those things. Are they realistic? Are they realistic for childcare? You know, you've got. We've all had the case where, yes, someone can go back to work and they'll earn $27,000 and their daycare is $29,000. Does that make sense? Um, you know, on their annual costs. So it's kind of considering all of the things that we need to consider rather than just is this particular job the best job for this particular individual?

Speaker A: Another thing I like that you guys did, and because this comes up a lot, is that the standard of living was funded by debt. So often in an ADR setting, you know, people submit their budgets and there's no way they lived on one person's budget, let alone both people's budget. And then, you know, you look at debt. I mean, I think it sends a message like, okay, now, now we gotta get real, because you guys were, you know, very often the cause of the divorce was the financial, the spending, the overspending. So.

Speaker B: Yeah, and that was really the goal of adding that. And that was I think, really championed by everyone in the room that for the exact pieces that you point out, there is just people not having a realistic, ever, not in, not in the length of the marriage, having a realistic standard of living and then trying to replicate that with, you know, an additional household and potentially diminish income. It just. And then you look, you, uh, pull out the credit card statements and you see that people are, you know, trying to fund this standard of living by debt and, or, you know, by other, other means of, you know, not paying, you know, appropriate taxes or whatever. Like, it's really looking, looking at what is a sustainable standard of living that really was replicated in the marriage and not, it's kind of smoke and haze of different debt load.

Speaker A: Yeah, I mean, an analogy to that is also that when you, a family gets regular gifts from somebody from outside, I think this sends a message. I suspect that again by analogy that would fit, uh, in there, that you want a realistic budget.

Speaker B: Right? Yeah.

Speaker A: Um, and then you put in, um, an explanation of earning seniority um, the theory of what did you give up for the marriage? And, um, you know, it really brings that to the foreground. I don't, you know, that was in some case law. I know. But, um, it.

Speaker B: And I think too, adding, um, the mental health and chemical health for both parties and moving that into an analysis of both parties rather than just the obligee is also going to be pretty impactful, especially as people have, you know, I've had cases, I'm sure you have as well, where someone has been a top wage earner and then they develop a significant chemical problem or medical problem or, you know, they're not able to earn at that level. And, uh, what does that. You know, Judge Kevin Burke once said to a client of mine, a bit to my chagrin, if you live in the marriage, you, you die by it as well. You know, if you, if you have, if you've hitched your, your horse to this particular wagon and this wagon has gone in the ditch, you need to, you need to manage that. And I think that's a fair consideration. And why we wanted to put that in the statute is, you know, that's something that we really have to think about when we're considering things like ability to pay. Right. And we retained ability to pay. Obviously. Um, there's other pieces of the statute that worked very well in those factors, and we just retained those because they work. So the goal was to kind of add pieces and move pieces around so that they had the significance that they need to have for the court's consideration.

Speaker A: Yeah. You know, and in this section there's a talk about the, you know, the ability and the need to prepare for retirement. And, uh, what I found striking is the anticipated time of retirement. And I know later on there's the retirement. Social Security retirement age is spoken of. But it's interesting because there's so many fields that their body is used up or they're, you know, they're so, so beat up by their career. You know, it's the iron worker where it's dangerous, um, you know, the police officer who's walked a beat their whole life and they're on their second knee replacement and it's those kind of jobs that I think that gives them a place to talk about that in this career you retire at this age. Um, so it's a little bit of an out from the later on part about Social Security retirement, but again, it's thoughtful.

Speaker B: Um, yeah. And in the retirement piece itself, there's also consideration for a particular, um, um, vocations Kind of typical or normal age of retirement. I think the key component in both of those places, and this was one piece that was just missing from the statute, was, um, the overall consideration of retirement planning for it and actually being able to retire. And I'm sure, you know, as so many of us have, there's nothing more frustrating than to sit across the table from someone in their early to mid-60s who are saying, hey, I've been paying for 22 years now. Do I have to keep paying? And you're like, wow, that's.

Speaker A: That is exactly it.

Speaker B: It does not feel highly professional to be like, I don't know, you know, So I think that, that, that retirement goal was. Was a key component. Um, and that was. That came all the way back right from. From the shareholder group that got us going on this. They wanted their, you know, their goal was. Was obligors. But, you know, it's fair for people to have an ability to retire and to have an expectation of when that's going to happen. And it's fair for obligees to be able to pull plan and to know, you know, what they can expect. And that also led to the other changes in the retirement section. Uh, one of the biggest ones, which I think is that you have to use all available resources to meet your needs. And there's been a lot of case law about, you know, the ability to, you know, sustain things that you received in the divorce, you know, keep them for your heirs, whatever, keep. You don't have to live off your property settlement. And when it comes to retirement, you do. You need to live off your retirement. And that's a change, and it's a pretty significant one. And I think that was another place where we all agreed, hey, retirement should be used to meet your needs in retirement.

Speaker A: That was led to an immediate tough conversation with the client. It does end and you can be expected. I mean, that's a clear change in how I viewed the law previously.

Speaker B: Yeah, it's an absolute change.

Speaker A: Now we tap assets and that. That wasn't. That was, ah. I mean, I think a necessary message, you know, unless you're in a certain circumstance that you don't, you know, someone's continuing to. Had built. Continuing to build up and, and maybe continuing to work into their 80s or whatever. Um, you know, there's. There's, uh. It's a different world now. Ah, in light of the statute.

Speaker B: Yeah, yeah. And so the next big piece that we haven't talked about yet is duration.

Speaker A: Yep.

Speaker B: You know, we went a little bit out of order because we got talking about retirement, which is, you know, a star section from my perspective. But it is. The duration is obviously a big, big change. And again, this was a place where clarity and reasonable expectation was really the driving force in, you know, setting down some durational guidelines, durational limits, durational kind of things to think about. Um, and it's not only a, you know, a litigation framework. Right. I think it's really more so and hopefully better as a negotiation framework so people really can come into negotiations understanding, again, what the parameters are. And those parameters shouldn't be garnered by who your judge is or what county you're in or how this particular person feels. I mean, certainly that's risk, that's a risk of litigating. But we just really wanted to be sure there was some framework for all cases that was in some ways universal. And so that's what led to the durational guidelines. And again, they're rebuttable presumptions. So there was many conversations about, well, you know, well, what if this happens? Or what about this person that they were married two years, but they, you know, they have this special circumstance. I have a short term marriage where they've had really long term maintenance. And I'm sure other people do as well. And sometimes there's the appropriate circumstance for that. But it's not most circumstances. Right, right.

Speaker A: I remember when I, when I started in referee Beto in Ramsey county, kind of taking me under his wing, he said, our kind of thought is under 10 years, it's not really a maintenance case. 10 to 20, it's temporary and then 20 or more, it's permanent, you know, assuming other factors. But then you hear from other judges and other thought processes. And then doing a lot of mediation, it became, well, if we're fighting over temporary but permanent, why don't we talk about half the duration of the marriage as a compromise?

Speaker B: And, well, I think the old statute, which I'm going to like just flip to, so I get the language exactly right. But the, you know, the expectation of if there was any uncertainty, if there's any uncertainty, permanent maintenance. And that was a piece that we really wanted to address in a different way, you know, because that can be not appropriate for the facts. And so that was one of the pieces in the durational discussion that we wanted to think about.

Speaker A: Um, yeah, uh, it clearly gives us a lot more guidance. I mean, the whole section on duration, um, there's some provisions about a change being based upon a change in the tax credit code, which I found interesting. Um, the modification if the tax code modifies. So is there a thought that if we go back to the old days of tax deductible maintenance, is that where that came from?

Speaker B: Yeah. And that was a carryover. Most of the modification pieces. All that happened was we picked up 518, 839 as to maintenance and just moved it into the maintenance statute. So all things maintenance would rest in the maintenance statute instead of in the child support statute. Yeah, you know, ones here and ones there. Why is it in a child support statute that never made sense? Uh, so, you know, it was, it was addressing it in the place where, you know, here's where we're looking at maintenance. Let's look about at how maintenance would be modified.

Speaker A: Um.

Speaker B: Oh, go ahead.

Speaker A: There wasn't a lot of change in the cohabitation section. I mean, it's a relatively new statute. In fact, I think there was no change now that I look at it.

Speaker B: No, there was not.

Speaker A: Okay.

Speaker B: There was discussion about it and we just never landed at a place that seemed to be a market improvement on what was there already.

Speaker A: Um, and now to the actual retirement, um, section. And you know, it's the Social Security retirement age, which seems to be where the bench had coalesced largely anyway. I mean, 65 had been the thing for years. When I started, it was always 65. And then as Social Security retirement age, uh, increased, um, you know, they kind of followed that. So I think it's really nice that it's kind of now codified and um, under guidance.

Speaker B: It was one of those tricky things like anywhere that you put that stuff stick in the sand. Right. Anywhere that you put that benchmark is going to negatively impact some cases. But I think having a benchmark having like this is the line is going to so widely positively impact cases. Even if that positive impact is in how you settle it, which hopefully that will, will be, you know, the route for most cases as it is now that we can effectively settle cases because we know what the outside possibilities are. And you know, as I, as I mentioned, there's, there's also, you know, including whether a person is, you know, achieve the customary age for retirement in their occupation. So that's there as well.

Speaker A: Yep. I do like that. I've learned a lot about, you know, uh, certain, certain jobs. People are on their feet, they can't do it. There's the stress, there's the, you know, the on call surgeon. I mean, who's, you know, just done at 57.

Speaker B: Yeah.

Speaker A: You know.

Speaker B: Right.

Speaker A: Um, just can't work those kind of hours anymore, which is a very, you know, versus the steel worker who's got to keep his balance.

Speaker B: Um, right.

Speaker A: Or her. So, um, I, I did like the provision about the timing of when to bring that. I don't think that was in the previous statute. So you can look ahead and say, I'd like to retire in, you know, in one year and I can bring a motion. Because the timing was always a worry, like, are, uh, we too soon? Are we too. And if you do it after you submit your retirement paperwork and it's denied, are you going to have a problem? Um, I like that. Giving us some breathing room about when to do that.

Speaker B: Um, yeah. And that was the thought process behind it, again, is making, obviously, people like us who work in this every day, it's great for us to have more clarity and cleaner expectations, but it's really the people who have to live with these orders. And so letting people who want to retire have a clear understanding of when they can do that. And, you know, not having, like you said, not having someone who's ready to give their notice, but they can't give their notice in case they bring their motion, then their motion is denied, and then they have to keep working. And it's just, it's. It just was really another place where we just wanted to have some clarity for people.

Speaker A: Well, and a lot of us do evaluative processes like fee and evaluative type mediation, and there's such a question mark on maintenance. It's like, who's your judge? Who knows how this judge has handled things? Sometimes one attorney's tried three maintenance cases in front of that judge and has a huge advantage on knowledge. Um, now we have a statute that gives us a better framework. So I very much appreciate that.

Speaker B: Yeah. And I think too, we've got a newer, younger judiciary as well, and we've got some smart young judges that have not worked a minute in family law. And. And they are going to be with us, hopefully for the long haul on the bench. And so I think it's really important that we have good statutes to help kind of guide their analysis, because these things that require a lot of discretion, which. The maintenance statute is certainly a place where there was big room for discretion. I think it really, uh, our hope was. And the goal of the statute was to really impact by setting out some clear framework and by retaining things that worked and just modifying or eliminating things that didn't and then anticipating things we hadn't anticipated. Even though, you know, for those of us who work in this field, every Day. There are things we see over and over and over. So it was kind of those goals that we wanted to accomplish. And I'm really, I appreciate Dan's, uh, remarks that I'm just really proud of this work and I really am hopeful that it will really impact families in a positive way. That was the goal.

Speaker A: So let's talk a little bit about antinuptial and post nuptial agreements. Um, I'm litigating what I think may be my first, uh, post nuptial in a case. Um, they've come up, you know, and we solve them in mediation. Um, ante nuptials have, you know, come up, it seems like, on a more frequent basis. But what, what are the major changes to these sections of the statute?

Speaker B: So I want to give credit here to my friend and colleague Lisa Spencer, um, who was instrumental in, in the drafting of this. You know, I do not do a ton of. I don't draft these contracts. My law partners draft them. I have always kind of made the assessment that it's not, you know, because frankly of the, the questionable nature of the statute that we had and its reliability, I was always like, I don't know if that's something I really want to do. Um, but, but this. Just a quick history on this. Sure. You know, that this particular portion of the statute, um, of the new proposal or the new legislation I'm still saying proposed, it hasn't really landed on me that this was the real deal. Um, this was the quickest and easiest to get done.

Speaker A: Wow.

Speaker B: It was like, um, probably doesn't feel that way to the people who have been working on it. Um, but this was, you know, a, a discussion point between the probate bar, the, you know, MSBA probate section, the family law section, AAML and AML really did a massive rewrite. And, and it's, you know, there was some ordering changes that the house revisor went with that, uh, were not necessarily our favorite, but it's still, you know, the content is still there. And yet the goal was to really address the case law. Right. The Kremer case creates this kind of two track analysis for marital and non marital property and addresses, you know, McKee Johnson and the current. The previous version of the statute only applied to non marital property under Kremer. And so then you've got these two different legal standards in these two cases. That is confusing. And then you've got people. I heard a number of my colleagues say, hey, until we get better clarity in the law, I'm not sure that I want to do these agreements. And so really talented qualified practitioners saying, I don't know if I want to give this service to clients until we've got some clarity. Nothing drives a goal like having practitioners who are no longer willing to work on it if we don't get it straightened out. And so they did the drafting, um, and tried to codify the case law, uh, into one legal standard to eliminate those inconsistencies between the standards and make it clear that that one legal standard applies to both marital and non marital property. And there's also an important addition that wasn't in either case that indicates that if an agreement is signed less than seven days before the marriage, then the burden of proof needs to be on the person who's the proponent of the agreement. And that's obviously to avoid duress. And you know, attorneys who draft these, that was in their best practices anyway. But many people that have been drafting these agreements are not necessarily, necessarily considering, you know, people use form agreements. This is one of those things. It with many contract related transactions that can really go badly. And so I think now that people have, you know, we all have as providers, if you're going to do this kind of work, you can't just look at a form contract. You need to look at the statute, go through all of the requirements in the statute and be sure that all of those are being met. And so I think it's really an amazing piece of work. And um, of the pieces of this legislation that had pushback or discussion or concern, this was not among them. So it was tightly drafted, it was well drafted. There was not a ton of questions about it. The legislature trusted, uh, what was submitted to them and trusted our analysis of it. So I thought it was. I think it's really going to be important for people who want to be the beneficiaries of these kind of contracts to have good clarity on what you need to do to do it appropriately and correctly.

Speaker A: Yeah, no, I tried one of these a year ago. And in light of that, um, burden shifting you just talked about, um, there could likely have been a different outcome. So would have mattered.

Speaker B: Right, right. Read the statute. Read the statute.

Speaker A: Um, so last question I have for you, um, what is pending? What should we think about what's the legislature going to do next?

Speaker B: I hope nothing. I hope they do nothing. I'm exhausted. Um, but no, I think I want to just make a couple of notes as we're closing out. First of all, um, for MSBA members, this work does not get done without Brian Lake, who is the bar lobbyist, the amount of work that he does or that. That role. I think that role, but I think Brian Lake specifically does for us as attorneys and members of the bar in all areas of law. But specifically to this issue, he did just a tremendous amount of work. Uh, and, you know, two of these, of the four pieces of this bill that passed, two of those were bar priorities, MSBA priorities, and two, he just was willing to help, especially me, um, out on getting them done. And so I think it's critical to thank your bar representative, including your lobbyist, um, and additionally, uh, Victoria Taylor and Kelsey Daniels, who are the legislative chairs for the msba. Um, Victoria and I joke that no one is coming for our job anytime soon. Um, I've been the legislative chair for the AML for quite a little while, and I took that job over, and I still get a lot of advice from my friend and colleague Michael Ditburner. And I don't think anyone was coming for his job for the many years that he held it either. And so it takes a ton of time and commitment. And if people are interested in legislation, I've already gotten some feedback on these bills, and I am happy to say if you want to come and work on this, please join us. Um, but I think there are certain topics that are still bouncing around and are going to continue to be considered. Um, I will say that it struck me after I sat at the legislature for eight and a half hours on the final hearing on the Senate omnibus bill, which included these pieces. Um, it was the fourth bill on the agenda. I sat there for eight hours, and they were still on the first bill on the agenda. They got to our bill at 4am the following day, a big shout out to Senator Bonnie Westland, who powered through all of that to carry the bill forward. Um, but. But when I watched it, uh, at 4:00am because you can watch these things on webcast again, if you care. Um, somebody made a singular amendment to that, um, to 5, 18, 175. The. The presumption, the 25% presumption. And they said, I just want to change it from 25 to 50. Like, whoa, like no big deal. And I thought, oh, my gosh, like that one number in that one place changes the entire landscape of family law and busted your parenting time. And then that was defeated. And then he said, okay, how about 40%? And that was also defeated. But again, that movement. I say all that to say the 50, 50 presumption is still something that people are interested in. And so kind of figuring out And I've been in many, many, many discussions with, you know, AFCC and other shareholders about what, what can we do there to kind of is there a place, is there a place for 50, 50. Maybe there is, you know, maybe in long term relationships where both parties live with the child for the entire entirety of the child's life. Right. Maybe there is a place for that. We just have to see if we can get there. Um, because there's certainly a place that it does not meet the needs of kids. And I feel pretty strongly about that and have testified about that a number of times. So, you know, will there continue to be 50, 50 presumption requests? Probably. There was this time around, um, there are potential discussions about whether we should change the best interest factors in the third party custody area. Um, there was a, there was a proposal for those to match the 518 factors, which I don't think makes sense. Right. Because these are not the same. So, but things like that will come up where someone will think this is a good idea. And so you kind of have to be diligent about watching what's coming. Um, there has been really important discussions about coercive, controlling violence and how that should play in to an analysis in cases. You know, should it come into the best interest factor? Does it impact parenting? Should it be somewhere in 518, you know, how do we think about those kinds of things? So all of those things are things that were around the Capitol this year that I anticipate will probably be around the capital, um, as well in subsequent years. And there's also things in the juvenile code, Right. That will impact family at different points in time. So there's a lot of work to be done. And I do think we, obviously those of us who work in these roles do so on a volunteer basis. So while I'm certainly open to feedback and I want to hear from people, I think you got to know that people doing this work are doing the absolute best that they can. And I also just want to give a shout out, besides Senator Westland, to Kelly Moeller and Representative Peggy Scott. Um, one of the things I was really proud of in all of this work is that it had pretty,

Speaker A: um,

Speaker B: uniform bipartisan support, you know, to have Representative Scott as a Republican and Representative Molar both championing this bill, uh, was really, really important and impactful. And having Senator Wesland there to carry those bills in, um, the Senate was critical to their success. And so I just think it was a real team effort and definitely work that was worth doing for the last many, many, many years.

Speaker A: So I'm really glad to hear that because I hadn't looked up who voted and how it worked. But I know, um, Representative Scott's been very interested in family law for many, many years. I mean, remember meeting her at divorce, divorce camp, and she had her views, um, but to all get on board on this particular, very important legislation. And I'm really happy to hear that.

Speaker B: A great exercise and compromise. Right. And these are not things that just happen during the session. Like, I've met every summer since 2016 on these bills multiple times for multiple hours because it's hard to meet and do work in the session.

Speaker A: Sure.

Speaker B: You got to have, you know, the, the bar's legislative priorities are identified in the fall, so you really got to do that work on the front end, you know, and, and so every summer I've been hanging out in the Capitol, which is not heavily air conditioned in the summer, by the way. You know, working with Representative Scott, working with Senator Rusland, other people. There was a lot of House authors. So if you're a person who cares about who voted, you know, these bills ended up being. I actually took a photo. They were unanimously passed. So that, that goes a long way, I think, towards demonstrating what, what family law reform can look at. Like when it's what's done thoughtfully and done with enough time and bringing, you know, legal aid and violence free and all the people who need to be at the table whose voices are really, really critical. I just think it, it's, it's really important. And, and you, and on the flip side, you can't bring something to the legislature without the buy in of all of those shareholders. So people need to think about if they have something that they want to change. You're going to need to get everybody on board to, to get things accomplished. But I think when you do, it really does make for change that, that hopefully just meets the needs of families in a really thoughtful and measured way. And that was certainly our goal.

Speaker A: Well, when we started this, I promised you 20 minutes. So I mean, this is so important and I really appreciate that. You know, recording this, this history and memory of how this was all brought about is going to be really important for us going forward.

Speaker B: So why I'm happy to do it.

Speaker A: So, uh, thank you. Yeah, I mean, the sacrifices to your family and your practice. I mean, you've done a great service for us.

Speaker B: Oh, absolutely.

Speaker A: Thank you.

Speaker B: I appreciate it.

Speaker A: Well, I certainly did learn a lot, uh, from, uh, talking to Sam. I do hope you did as well, uh, it certainly gives a bit of background, uh, and framework for how the legislation came about and what, why it is, where it's at. Um, I think a lot of places will be helpful. Uh, regardless. I know I've already spent a fair amount of time, uh, running it by clients, sharing the new approach. Um, how we need to think about the statute. Uh, we're probably going to internally have to revise some forms and think about this a little bit more. Um, so I do hope, uh, it was worth your time and, uh, look forward to further, uh, conversations about family law. And finally, I want to congratulate the Minnesota women's hockey team that, uh, just won the Walter cup, and we'll be proudly bringing that back to Minnesota. So until next time, I wish you well and look forward to further conversations. Sa.